Washington v. Cain ( 1999 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-31114
    Summary Calendar
    DENNIS RAY WASHINGTON,
    Petitioner-Appellant,
    versus
    BURL CAIN, Warden,
    Louisiana State Penitentiary,
    Respondent-Appellee.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 94-CV-1520
    - - - - - - - - - -
    September 27, 1999
    Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
    PER CURIAM:*
    Dennis Ray Washington, Louisiana state prisoner # 85946,
    filed a motion for reconsideration of a previously denied 28
    U.S.C. § 2254 petition.    The § 2254 petition was originally filed
    on August 15, 1994, and denied on November 21, 1995.   In his
    original petition, Washington raised the following arguments:
    1) the reasonable doubt instruction given by the trial court was
    unconstitutional under the Supreme Court’s holding in Cage v.
    Louisiana, 
    498 U.S. 39
    (1990); 2) there was insufficient evidence
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 98-31114
    -2-
    to support Washington’s conviction; and 3) Washington’s attorney
    rendered ineffective assistance.
    The current motion for reconsideration was filed on August
    28, 1998.   In addition to requesting reconsideration of his
    former arguments, Washington argues that this court’s holding in
    Humphrey v. Cain, 
    138 F.3d 552
    (5th Cir.), cert. denied, 119 S.
    Ct. 348 (1998) gives retroactive application to the Supreme
    Court’s holding in Cage, thereby entitling Washington to relief
    under § 2254.   Washington recognized that his petition would be
    barred if filed as a request for permission to file a successive
    habeas petition. Consequently, he urged the district court to
    reconsider his original § 2254 petition.
    The district court denied Washington’s motion for
    reconsideration, but granted a certificate of probable cause
    (CPC).   Washington’s petition is now before this court as a
    result of the district court’s granting a CPC.
    This court reviews a district court’s denial of a Fed. R.
    Civ. P. 60(b) motion for abuse of discretion.    Carimi v. Royal
    Caribbean Cruise Line, Inc., 
    959 F.2d 1344
    , 1345 (5th Cir. 1992).
    This court has explained that a district court may construe a
    motion for reconsideration under Rule 60(b) as a request to file
    a successive habeas petition, and then dismiss the request for
    lack of jurisdiction.   See United States v. Rich, 
    141 F.3d 550
    ,
    551 (5th Cir. 1998), cert. denied, 
    119 S. Ct. 1156
    (1999)(§ 2255
    case); Williams v. Whitley, 
    994 F.2d 226
    , 230 n.2 (5th Cir.
    1993).
    No. 98-31114
    -3-
    The district court’s denial of the motion for
    reconsideration, yet at the same time granting a CPC, appears to
    be inconsistent.   The district court explained in its order that
    it would not allow Washington to circumvent the requirements for
    filing successive habeas petitions when it denied his motion for
    reconsideration, yet it did not dismiss the petition for lack of
    jurisdiction.   See 28 U.S.C. § 2244(b)(3)(A).    On the other hand,
    the district court gave validity to Washington’s procedural
    method seeking reconsideration of an already defeated § 2254
    motion by granting a CPC.
    Accordingly, the district court’s orders denying
    Washington’s motion for reconsideration and granting CPC are
    VACATED and the case REMANDED to the district court for further
    proceedings.
    On remand, the district court should clarify whether it
    treated Washington’s petition as a request to file a successive
    habeas petition, in which case it should have been dismissed for
    lack of jurisdiction.     See § 2244(b)(3)(A).   In the alternative,
    the district court should explain the basis for considering
    Washington’s motion for reconsideration to be a valid procedural
    method, thereby permitting Washington to proceed on appeal from
    his original § 2254 petition.    If, on remand, the district court
    still determines that a CPC is justified, it should address
    Washington’s arguments relating to sufficiency of the evidence
    and ineffectiveness of counsel.
    VACATE and REMAND.